Institutional Rules, Strategic Behavior and the Legacy of Chief Justice William Rehnquist: Setting the Record Straight on Dickerson v. United States

37 Pages Posted: 15 Feb 2007 Last revised: 7 Sep 2011

See all articles by Daniel Martin Katz

Daniel Martin Katz

Illinois Tech - Chicago Kent College of Law; Bucerius Center for Legal Technology & Data Science; Stanford CodeX - The Center for Legal Informatics; 273 Ventures

Date Written: April 20, 2006


Despite his long-standing opposition to the Miranda doctrine, why did Justice Rehnquist vote to save the Miranda doctrine in Dickerson v. United States? As written, many prevailing accounts accept Justice Rehnquist's opinion in Dickerson v. United States at face value and disavow the potential of a strategic explanation for his behavior. The difficulty with the non-strategic accounts is their failure to outline explicitly the evidence supporting the uniqueness of their theory. Specifically, these explanations largely ignore the alternative set of preferences that could have produced the Chief's decision. This is troubling because prior social science scholarship demonstrates that a chief justice possesses a unique set of institutional powers that provides significant incentive for him to behave sophisticatedly.

Many prevailing explanations for Dickerson at a minimum are incomplete because they fail to determine whether his vote and opinion were the result of moderation, fidelity to traditional legal principles, or, in fact, strategic behavior. This article pursues a uniqueness claim, arguing the available evidence supports a strategic explanation for Justice Rehnquist's behavior in Dickerson. To do this, the article first reviews the methodological debate that exists within the social science scholarship, a debate relevant to the competing explanations for the Dickerson decision. Next, the article explores the strategic or quasi-game theoretic approach by describing the multistage sophisticated process that produces all Supreme Court decisions. It culminates in a general form diagram that maps the behavioral choice faced by all similarly situated Chief Justices'.

This diagram - inspired by game theoretic literature on judicial decision making - is carried forward into Part II of the article. Part II directly considers the Dickerson decision. This section begins with a description of the Supreme Court's Miranda jurisprudence before reviewing the specific facts and procedural history of the case. Next, Part II reviews Justice Rehnquist's Miranda-related decisions which, taken together, demonstrate the truly anomalous nature of the Dickerson opinion. The article then outlines its strategic account, an approach rejecting many prevailing explanations of Rehnquist's behavior. Strategic and non-strategic behaviors are often observationally equivalent. Thus, in order firmly to support its strategic theory, this article concludes with a discussion of several important post-Dickerson decisions, where the Chief Justice surprisingly supports the preservation of certain exceptions to Miranda even after his Dickerson opinion supposedly afforded Miranda full constitutional status. The cases are critical to the analysis because they help determine what end Chief Justice Rehnquist actually achieved in his Dickerson opinion. He successfully froze a set of pre-Dickerson Miranda exceptions that he personally developed during his thirty-year tenure on the Court. It is from this perspective that commentators in fact are correct to argue that Dickerson is critical to understanding the legacy of the late Chief Justice.

Keywords: William Rehnquist, Dickerson v. United States, Observational Equivalence, Supreme Court, Game Theory, Strategic Behavior, Institutional Rules

Suggested Citation

Katz, Daniel Martin, Institutional Rules, Strategic Behavior and the Legacy of Chief Justice William Rehnquist: Setting the Record Straight on Dickerson v. United States (April 20, 2006). Journal of Law and Politics, Vol. 22, 2006, Available at SSRN:

Daniel Martin Katz (Contact Author)

Illinois Tech - Chicago Kent College of Law ( email )

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